Cross-examining an expert witness is one of the most challenging and exciting things we do as trial lawyers. Nothing is more rewarding than to sit down after an effective examination with the feeling that you have neutralized the opposing expert and by doing so greatly helped your case. But in order to obtain that level of satisfaction there is much work to do in preparation and developing an effective strategy.

In analyzing the challenge we must be honest with ourselves that no matter how smart we are or how much we study we are not going to be able to match the expert’s level of knowledge in his or her field of expertise. But that does not mean we are not going to try to educate ourselves to the maximum extent possible in the narrow area of medicine, engineering or whatever the specialty is regarding the relevant scientific topic.   For medical witnesses we can read all of the most relevant medical literature articles on the narrow area involved in the case as well as obtain background knowledge from textbooks to help us understand those articles. We also have our own experts to help us understand complex scientific topics. Using these resources we can prepare ourselves sufficiently to attack the weak points underpinning an expert’s opinion.This article will first discuss some of the basic legal principles involved in conducting an effective cross-examination of an expert. We will then discuss strategies and techniques that we have utilized in the past to attack the opposing experts’ opinions. As will be further emphasized below, it is important to look at each cross-examination as a unique and different experience from any of the ones you have done in the past and to utilize some but never all of the strategies and techniques that will be discussed. Less can definitely be more when it comes to cross-examination and length very rarely equates to effectiveness.

Finally, although both of us have tried a good many cases, and one of us (Schwarz) had the great opportunity to learn from the other (Faraci), each of us approaches witnesses a little differently based upon our individual personalities and comfort zones. In cross-examination like every other aspect of trial practice before a jury, you must be yourself and not try to copy someone else’s style the way an actor assumes a role. You can learn from watching others, but you need to develop your own style in using these strategies and techniques in order to make them truly effective. [Part 2 coming Wednesday, May 26, 2010]

Of course, fairness is a two way street: the time periods are generally crafted to give the party bringing the lawsuit sufficient time to learn they have been harmed. Indeed, in many States, the time periods do not begin to run until a person knows or reasonably should know that they have been injured. It is in this regard that the New York statute of limitations in medical malpractice cases is so unfair.

In malpractice claims in New York, the statute of limitations is 2 ½ years from the date of the malpractice and there is no discovery rule. This means that in many otherwise clear and valid cases, a person’s time limit to sue runs before they ever knew they were injured. We are currently representing a Central New York family in a case that graphically illustrates the unfairness of New York’s malpractice statute of limitation.

Our client is a much decorated Vietnam veteran who had a history of kidney stones. In the Fall of 2004, he developed some symptoms consistent with the redevelopment of a kidney stone. His health care provider ordered a CT scan, which showed a tiny (2 mm) kidney stone. It also showed a 2.5 cm. mass entirely within his right kidney that was suspicious for a malignancy. The doctor who read the CT scan recommended an ultrasound for a more definitive evaluation. Our client was told about the small kidney stone, but was not told anything about the mass or the need for an ultrasound, which was never ordered.

Although our client continued to be treated at that clinic regularly, nobody at the clinic recognized that he had a kidney mass that needed further work-up and nobody at the clinic ever arranged for the ultrasound that the radiologist said was necessary. Since our client was never told about the kidney mass, he had no idea that he needed any further work-up or treatment.

In August 2008, our client developed some intense back pain that testing showed was not orthopedic. Eventually, a doctor at the clinic, looking through the chart, noticed the September 2004 CT scan and realized that our client had never been sent for the recommended ultrasound. It was ordered immediately and it showed that the small 2.5 cm mass had grown to the size of a softball and had spread beyond his kidney to his ribs and liver.

It is clear that if our client had been properly followed in September 2004, his kidney tumor would have been diagnosed before it spread and his chance of a complete cure through the removal of the kidney was nearly 100%. Because of the four year delay, his tumor spread beyond the kidney and as a result, he is unlikely to survive beyond the end of this year.

Because our client was getting his medical care through the Veterans Administration from health care providers that were employed by the United States Government, he and his family have a remedy in this case. This is because the 2 year statute of limitations imposed by federal statute for claims against the government does not begin to run until the injured person knew or should have known of the injury. Here, our client did not learn of the malpractice until August 2008, so he was able to timely file his claim against the United States.

However, had he been receiving his health care not at the VA, but rather at a private clinic, our client and his family would have no legal remedy despite the obvious medical malpractice because the statute of limitations in New York, which is measured from the date of the malpractice, would have run more that a year and one half before our client ever knew that his health care providers discovered a mass in his kidney but failed to do anything about it.

New York courts have recognized the unfairness of being time-barred before the injured party ever knew of the malpractice, but have largely argued that changing the rule and imposing a discovery rule is not for the Courts, but for the Legislature. Courts have attempted to ameliorate the harshness through the judicially-created “continuous treatment doctrine”, which can, in some circumstances, extend the limitations period beyond 2 ½ years. However, that doctrine offers little or no protection to people like my client because while he was still being seen in the same medical clinic, he was not being treated by them for kidney problems. In the case of a failure to diagnose a disease like cancer, the continuous treatment rules are of little help. As a result, there are legions of reported cases where people have been time barred before they ever knew about their injury.

There is no justification for the continued application of the New York medical malpractice statute of limitations without a discovery rule. Clearly, although Courts have the inherent power to change the rule, they will not do so. Our Legislature also has been unwilling to change the rule except in the limited situation of leaving a foreign object in a person’s body after surgery. At least for our client’s family, the serendipity of being treated by the VA means that they will have a remedy. For other New Yorkers, the unfairness remains.

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If the ad doesn’t play smoothly, click on the red HD button to turn off High Definition playback.

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All Faraci Lange’s branding and advertising is by Moon Brand.

If the ad doesn’t play smoothly, click on the red HD button to turn off High Definition playback.

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All Faraci Lange’s branding and advertising is by Moon Brand.

If the ad doesn’t play smoothly, click on the red HD button to turn off High Definition playback.

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All Faraci Lange’s branding and advertising is by Moon Brand.

If the ad doesn’t play smoothly, click on the red HD button to turn off High Definition playback.

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All Faraci Lange’s branding and advertising is by Moon Brand.

Under the old law, an injury victim had little recourse if the negligent party did not inform his or her insurance company about the claim in the time required by the insurance policy. The insurance company could deny the claim on the ground of late notice, even if the late notice had no effect on the company’s ability to defend the claim. Further, the injury victim could not challenge the denial of claim in court until after he or she obtained a judgment against the negligent party and the insurance company refused to pay. This forced the injured party to spend a considerable amount of time and money litigating the case with no way of knowing in advance whether there would be any insurance coverage to pay the verdict and expenses if he or she won the case at trial. 

The new law

 In July of this year, Governor Patterson signed into law a bill, effective January 17, 2009, that bars a liability insurance company from denying coverage based on late notice unless the company can show that it was prejudiced by the delay. In order to show prejudice, the insurance company would have to prove that the late notice “materially impairs the ability of the insurer to investigate or defend the claim.” Insurance Law §3420(c)(2)(C). This relaxation of the notice rules is not absolute. The law includes a rebuttable presumption that the company has been prejudiced if notice of the claim is given more than two years after the time required by the policy. In addition, prejudice is presumed if the insurance company is not notified until after the claim has already been settled or tried in court. Insurance Law §3420(c)(2)(B). 

The new law also gives an injury victim the right to challenge the insurance company’s denial of coverage at the beginning of his or her personal injury case rather than at the end. An injured party can now bring what is known as a declaratory judgment action to determine whether the insurance company can prove that it was prejudiced in any real way by the late notice of claim. Insurance Law §3420 (a)(6). 

All in all, the revisions to Insurance Law §3420 are beneficial and will help level the playing field between injury victims and the insurance industry in New York State.

The American College of Trial Lawyers is composed of the best of the trial bar from the United States and Canada and is widely considered to be the premier professional trial organization in America. Founded in 1950, the College is dedicated to maintaining and improving the standards of trial practice, the administration of justice and the ethics of the profession. Through its Board of Regents, its general committees and its state and province committees, the College engages in a wide variety of activities to further those purposes.

Admission to the College is a rigorous process that involves intensive investigation of each candidate and is limited to a maximum of one percent of all attorneys in practice in a region.

Faraci Lange is proud to have three Fellows in the College, more than any firm of any type in upstate New York.